Good morning, ladies and gentlemen. It is a pleasure to call this meeting of the Standing Committee on Justice and Human Rights to order.
Today we are joined by three distinguished organizations to testify before us in our study on access to justice. We're joined by the Canadian Bar Association, represented by Kerri Froc, who is from the legislation and law reform group, and Doug Ferguson, who is a member of the access to justice committee. Welcome, Ms. Froc and Mr. Ferguson.
We're joined by the Canadian Council of Criminal Defence Lawyers, represented by Richard Fowler, who is the British Columbia representative. Welcome, Mr. Fowler.
We're joined by the Metro Toronto Chinese and Southeast Asian Legal Clinic, represented by Avvy Go, the clinic director. Welcome, Ms. Go.
We have agreed that the Canadian Bar Association will start, so I'm going to turn it over to you, and I think Ms. Froc will commence.
Thank you, Mr. Chair and members of the committee.
The Canadian Bar Association appreciates the opportunity to comment on access to the justice system and legal aid, which is closely related to our mission.
The Canadian Bar Association is a national association representing 36,000 jurists across Canada. Among the association's primary objectives are to improve the law and the administration of justice, and it's in that context that we've provided our submission to you.
I'm appearing with Doug Ferguson, who is a member of our access to justice committee. He is also the director of the community legal services clinic at Western's law department.
I'll turn now to Doug Ferguson to address the substance of our submission to you.
Mr. Chair, it's an honour to appear before the committee today on behalf of the Canadian Bar Association. I want to thank you for inviting us to appear with you today.
The justice system in Canada today is in crisis. Many Canadians cannot afford legal representation, including the middle class. Court cases take years to come to a conclusion, and many Canadians do not understand their legal rights. Along with Parliament and the executive, the justice system is one of the three pillars of our democratic system. In other words, the justice system is the foundation of our democracy. If Canadians do not have access to the law they cannot obtain justice, and if they cannot have justice, they will lose faith in our democratic system.
Legal aid plays a major role in access to justice for many Canadians with low incomes. Our access to justice committee issued a report in 2013 on an initiative entitled “Equal Justice: Balancing the Scales”. I want to draw to members' attention two points from this report. First, spending per capita on civil legal aid—that is not criminal, not refugee, but everything else—declined by over 20% from 1995 to 2012. Applications for civil legal aid that were accepted declined by two-thirds. As for criminal legal aid, federal government contributions declined from about 50% of total cost to about 20% to 30%. Per capita contribution by the federal government for criminal legal aid declined by about 10% between 2008 and 2012. What are the consequences of this decline? Let me give you some examples.
For many years in Ontario, if you made the minimum wage you made too much money to qualify for legal aid. You were deemed capable of paying thousands of dollars to a lawyer to represent you. Family law is an area that is suffering greatly. In Ontario, and I believe it's the same in other provinces, anywhere from 50% to 70% of parties in the family courts do not have representation. These people are seeking child support, or they're seeking custody of or access to their children, and they can't navigate the system. It's too complicated, and because they don't have help and don't understand the family court rules, self-represented litigates clog up the court system. Cases are delayed, costs rise, and justice is not done.
Before going further I do want to recognize there have been some positive developments since 2012. The federal government added some funding in its last budget, and some provinces have made some improvements, but not for a minute should we believe that the funding issue has been resolved. It can only be described as a very small first step.
One of the most important recommendations in the Equal Justice report was to create national benchmarks for legal aid. This is the major point I want to make to you today. Canadians have the right to equality under the law, but under our current legal aid system, they don't get it. Each province and territory has its own legal aid system with different services, coverage, and standards. Financial eligibility differs from province to province, and coverage varies too. What is covered in one province may not be covered in another. For example, a tenant threatened with eviction and perhaps homelessness by a landlord may get legal aid representation in Quebec, but not in Ontario. Someone charged with shoplifting may obtain legal aid in Alberta, but not in British Columbia.
The CBA joined forces with the Association of Legal Aid Plans, which is the national association of all the legal aid groups in the provinces and territories, to formulate national benchmarks for legal aid, and these benchmarks were released this fall. There are six proposed benchmarks, and they are aspirational in nature. First is a national system that is sustainably funded and provides comprehensive, people-centred services tailored to local needs. Second is that services are to be provided to those with essential legal needs who are otherwise unable to afford assistance. Third is that legal services will be provided on a priority basis, which will vary across each province and region.
Fourth is that legal services will have a broad spectrum of services tailored to meet people's needs, circumstances, and capabilities. Fifth is that services must be of high quality, fully accessible, timely, culturally appropriate, and cost-effective. Sixth is that legal service providers should work collaboratively and be mandated to innovate, and work with other stakeholders to ensure an effective justice system. They would have indicators and measurements that must be aligned with those of other relevant organizations.
These benchmarks will ensure better equality among Canadians, while addressing local or provincial priorities.
There will be a cost to implementing these benchmarks. The cost, however, will not be as much as one would think. As you saw in our submission, studies in the U.S., the United Kingdom, and Australia show that on average for each dollar invested in legal aid, the social return on investment is six dollars, so a 6:1 ratio. Much of that six dollars is comprised of government spending in other areas such as decreased income benefits, increases in tax revenues, or decreased court costs.
The CBA has, over the years, called for these measures and we believe it's time to act before the deterioration in our justice system goes further. It's not just low-income persons who are being shut out of the justice system. It's the middle class, too, who cannot afford the cost of going to court.
The CBA calls upon the federal government to take two steps. First, we ask that it endorse and implement our proposed national benchmarks. Second, we call upon the federal government to remove civil legal aid from the Canada social transfer. You may recall that the transfer includes civil legal aid. We ask that they remove it and provide a separate, dedicated transfer for funding civil legal aid at levels that will support compliance with our benchmarks.
We'd be happy to discuss this issue further with members of all parties. This issue requires recognition of the long-term risk to our democracy if justice is not being done. It also requires the political will to deal with it.
Thank you very much.
Thank you very much, honourable chair and honourable members. It's a pleasure to be before you today. Thank you very much for the invitation to the Canadian Council of Criminal Defence Lawyers.
It's a pleasure to appear before you today and to assist you with respect to this very important topic. I've been a criminal defence lawyer for over 21 years. I've had conduct of trials and appeals in all levels of court in Yukon and in British Columbia, and I've appeared in the Supreme Court of Canada. I've appeared in 14 different supreme courts in British Columbia, and 36 provincial courts. Many of my cases have been funded by legal aid, managed by the Legal Services Society in British Columbia. I have about eight minutes to summarize my 21 years of experience with legal aid.
We live in a society governed by one pre-eminent constitutional principle, the rule of law, and yet very few members of society have the ability to hire a lawyer to help them understand the laws that govern all of us. There are many thousands of offences, not just under the Criminal Code but many other federal statutes and provincial statutes, and of course thousands of regulations and municipal bylaws. The people who pass our laws and create almost innumerable offences appear to put very little thought into how citizens can possibly expect to understand and defend themselves if they are ever charged with an offence. For example, in British Columbia, we modernized the family law and allocated no resources for legal aid, so 30% to 40% of family cases in the Supreme Court of British Columbia involve unrepresented litigants and all of the attendant costs in court for judges when these individuals appear without lawyers.
Many eminent individuals and organizations have studied legal aid or aspects of the justice system and commented on the necessity of proper provision of legal aid. In a report commissioned by the Law Society of British Columbia and the CBA, Len Doust, QC, concluded that legal aid must be considered an essential service. Legal aid should not be considered an afterthought, subsidiary to the needs of health and education, but as one means by which we educate individuals and keep people and families healthy. For many people, conflict with the law is an opportunity for change. As a lawyer, I'm often the first person to advise on the need for drug rehabilitation, alcohol rehabilitation, or mental and physical health needs. I regularly direct individuals to these resources.
The proper functioning of the criminal court requires well-trained, educated judges, crown counsel, and defence counsel. The provinces, by and large, have invested in judges and the crown, but have utterly failed to invest in legal aid, the means by which defence counsel learn to become barristers and advocates. We cannot afford to mentor the next generation of defence counsel through the funding of junior counsel in court. That's the only way you can learn to be a barrister, by being junior counsel to senior counsel. Without experienced, well-trained defence lawyers, the system will continue to struggle with delay.
The Senate is currently studying delay in the justice system. I had the pleasure of addressing that committee when they appeared in Vancouver earlier in the year.
We will continue to see trials go on longer than they should. This is not just my experience, but the conclusion of the LeSage-Code report that was commissioned by the Attorney General of Ontario, and it's also consistent with the comments of the Canadian Institute for the Administration of Justice report on mega-trials in Vancouver. Efficiency requires experienced lawyers. Studies have consistently shown, as my colleague said, that for every dollar invested in legal aid, there are economic benefits of between two to seven dollars.
This is, with respect, a non-partisan issue. The proper allocation of funds to legal aid can be supported philosophically, economically, empirically, politically, and ideologically. When I started in 1994-95, parking at the courthouse in Vancouver cost $3.50; it now costs $16. Legal aid rates haven't changed.
Society's most disadvantaged, society's poorest, our mentally ill, our impoverished, will often come into conflict with the law. How we help them at those times can be the difference between years more conflict with the law or addressing their needs and rehabilitation.
Healthy individuals equal healthy families. Healthy families equal safe communities.
Thank you very much.
Thank you very much for inviting me. I'm here on behalf of the Metro Toronto Chinese and Southeast Asian Legal Clinic. I should mention that I'm also a bencher of the law society. The law society has struck a working group on legal aid, studying this very important issue, as we recognize that this is a critical issue that challenges all of us.
As I mentioned in my report, the clinic is a not-for-profit organization that provides free legal services to low-income members of the Chinese and Southeast Asian communities in the greater Toronto area. We provide a wide range of services in different areas of law, including immigration, employment, social assistance, housing, human rights, tax law, charter litigation, and anything that our clients need.
We were established in 1987. We're one of 76 community legal clinics in Ontario. Many clients served by our clinic face barriers in accessing the justice system, not only because they are poor but also because of their race, their immigration status, as well as the lack of linguistically and culturally responsive services in the justice system in general. All of those issues are compounded by the chronic underfunding of legal aid programs by both the federal and provincial governments.
A significant portion of our clients are individuals with complex legal needs, including people with mental health issues, immigrant and refugee women fleeing domestic violence or living in domestic violence situations, and non-status immigrants working in precarious job situations. Recognizing that the legal system often serves to perpetuate the disadvantages faced by marginalized communities, legal clinics like ours must engage effectively in advocacy work to address the underlying and systemic inequalities in our society and the inequalities faced by our communities, including racialized and immigrant, which are plenty. They experience higher unemployment rates, earn lower income, and are more likely to live in poverty, and as such, they are more likely to be homeless or in near homeless situations. Racialized community members face systemic racism in the criminal justice system and the justice system in general and are more likely to be overrepresented in the correctional system.
For all these reasons and more, access to justice, including access to legal aid and the fair representation in the courts and tribunal system are all important issues for these communities. Community legal clinics play a critical role in promoting access to justice. Clinics that serve specific ethno-racial groups, like ours, are keys to promoting access to justice for racialized communities.
However, a community legal clinic system can only succeed if it is part of a well-funded legal aid program that also supports the judicare system as well as duty counsel services in the courts and tribunals. Notwithstanding the recent increase to legal aid funding in Ontario, access to justice for most vulnerable individuals is still woefully inadequate. This is particularly true in family law, refugee law, and other civil law areas.
In Ontario, there is currently a funding crisis due to the deficit for refugee law certificates. Although legal aid expenses in refugee law cases have gone up from $17.6 million in 2013 to $22 million last year, the federal contribution has stayed the same at $7 million. We've heard about the drop in federal contributions in the criminal law area.
In attempting to address the funding crisis, Legal Aid Ontario has decided to claw back funding to legal clinics, which has affected our services as well. Given the ongoing challenges facing racialized communities and other marginalized groups in pursuing access to justice, in our paper we have made a number of recommendations. I'm going to highlight a few of them.
Number one, significantly increase the federal government's contribution to legal aid programs, and a significant portion of those increases must be earmarked for civil law and poverty law services.
Number two, adopt a racial equity impact analysis to examine and evaluate all laws and policies at the federal level to minimize, if not eliminate, the adverse impact of such laws and policies on racialized groups.
Number three, work with provinces and territories to create their own court challenges programs.
Number four, work with provinces and territories to develop a centrally accredited interpretation and translation service for all courts and tribunals.
Number five, develop a national access to justice strategy in tandem with the national poverty reduction strategy, based on social determinants of health, that recognizes the particular vulnerability of marginalized groups on the basis of race, gender, disability, and so on.
I know there is a suggestion about creating national benchmarks. We have some comments on that in our paper. I will make just one comment here. If you decide to develop a national legal aid benchmark, then one key suggestion that I would have is that these benchmarks not be set at a standard lower than what currently exists in Ontario, because Ontario has the best legal aid program in Canada.
In conclusion, an adequately funded legal aid program remains the key solution to promoting access to justice. As mentioned, rule of law is foundational to our constitution, and so is respect for minority rights. There is no rule of law if individuals are unable to recognize and enforce their legal rights due to a lack of legal representation. As for respect for minority rights, that rings hollow if racialized group members and other marginalized members continue to be left to their own devices when they appear before the courts and tribunals. The need to address this issue rests on all of our shoulders.
Thank you very much.
I will try to stay within the time limits myself, Mr. Chair.
Thank you very much for your testimony. This is very helpful to us to put this together. I know it's appreciated by everyone here.
I have just a couple of questions. One of the materials we were given here has a quote from an article on domestic legal aid's claim to equality, by Patricia Hughes. It's about 20 years old, but I'd just like to get your comments as to whether any progress has been made. I have a feeling there hasn't been that much progress.
Mr. Ferguson, you talked about the decrease in civil legal aid. Here's the quote from Patricia Hughes:
||...men receive the assistance of the state in defending their abuse of women, while women receive less assistance fending off the abuse or removing themselves from it.
That statement is 20 years old. What's the situation today? Is it still the same? Has there been progress made in this area? It seems to me there might not be progress in terms of civil legal aid because....
Can I just address your first point about funding women in domestic...?
In British Columbia, if there's no risk of jail, which there wouldn't likely be for a first offender in a domestic assault situation where there are no serious injuries, that male won't get legal aid. The woman is unlikely to get legal aid in the domestic if there's a related family situation, so both individuals are going to be floundering within the justice system. We will then have the attendant costs of the court having to appoint counsel because it's not advisable, of course, for the man.... As we know, it's more often the man than the woman, but sometimes women are charged with domestic assault, too. However, it's not appropriate for the accused to be cross-examining the complainant, whether it's the husband or the wife, so we have attendant delays because the trial will have to be adjourned while counsel is appointed.
Then, of course, the related family case will be sidetracked because they really intersect. The family case will pass protection orders. There will be bail conditions under the Criminal Code. These won't be compatible, so applications will have to be made in the family court and in the criminal court, and none of these individuals have a lawyer. It's so inefficient. That's why a dollar invested can lead to seven dollars of savings. It's not a difficult issue.
In respect of the pro bono question, every lawyer who does legal aid does pro bono. The mandatory pro bono is directed, really, at the large law firms, where lawyers are making good incomes. They're being paid big hourly rates by corporations, very often, or by wealthy individuals. I think the mandatory pro bono is really aimed at those individuals and those large firms. As for the legal aid lawyers, we all do pro bono. A large percentage of the hours we spend on a case are not compensated. That's the reality, and it's getting worse and worse and worse.
Of course, access to justice is part of a key mandate of the law society, and it's one of our priorities. In fact, last year, at the strategic planning day at the law society, the suggestion of making pro bono mandatory for all lawyers did come up as one solution. However, it was very quickly shot down for a number of reasons. One was that it actually does not get to the heart of the problem that all of us are talking about today. In fact, it may penalize people who are already doing a lot of work, such as legal aid lawyers. It is not the solution at all.
But to address your first question, at our clinic, 25% of the clients who contact us for help seek help in the family law area. The majority of them are women. A significant proportion of them are in domestic violence situations, and a significant number of them will not get legal aid because of the very low income requirement to qualify for legal aid. Even with the new funding from the provincial government for Legal Aid Ontario, people still have to live way below the poverty line in order to qualify for legal aid. They have a slightly higher eligibility for people in domestic violence situations, but again, it's still very low and it doesn't cover all areas of law within the family law context.
Thank you all for being here. I appreciate your testimony.
My question is for the Canadian Bar Association. In your brief on page 5, you say that in 2003 you called for a separate federal access-to-justice transfer to emphasize that access to justice should be seen as an essential public service and given similar recognition as health care under the Canada Health Act
First, do you still call for that? Second, what would that look like? The Canada Health Act basically provides a national framework. It designates the basic services we want to see right across the country and says that in exchange for each of the provinces living up to those standards, we will write a cheque. Is that the sort of thing we're talking about?
Third, would this extend to the level of medicare, say, some sort of legal care approach, where we have a single, publicly paid, private delivery situation, if that doesn't terrify the lawyers?
With respect to the publicly paid system, there has to be some kind of minimum standard for income. This is not intended to be universal legal care we're talking about here. What that minimum income is can be negotiated. Whether it's the basic poverty level, whatever that may be, or something above that or below that, it has to be something that will....
Here's my concern. If someone has been charged for shoplifting, that will affect their whole life. They may have a defence, they may not, but they should be aware of their rights and dealt with accordingly. If they have a defence, they should be entitled to it and they should use it. These issues that come up are so important to a person's life. They need the ability to deal with it in a knowledgeable manner. As I said, even the middle class is having some difficulty.
I'm going to go off on a bit of tangent here, if I may. I'm speaking for myself here, not for the CBA. There's more than one path to justice. I think we should be looking at alternatives to going to court whether it's mediation or.... Actually, our access to justice report talked about having a system of triage where people coming into the justice system can be diverted to mediation, or counselling, or to court. There are various ideas. They won't cost much money. People may still need some legal services, but it would be minimized and more timely.
Timeliness is so important in this system. I'm told that in many areas of Ontario if you're asking for a Superior Court trial or civil court trial, you're looking two years into the future. Part of the reason for this is that the criminal system has to be given priority because of the recent Supreme Court decisions. However, justice delayed, as we all know, is justice denied, and it increases costs for everyone. It's not just a case of that. We have to find ways to find efficiencies, make things move faster, and still provide justice to individuals.
I will just add to that. One of the...I'm going to say “problems” but it may not be the right word. However, the fact of the matter is that criminal law is a federal jurisdiction but it's administered provincially.
Let's take an example of an individual who is charged with murder, and he's convicted. He will end up going into the federal correctional system, and he may be there for a number of years. In the meantime, he has an appeal ongoing. If he is successful in his appeal, he'll be immediately taken out of the federal institution and put into a provincial institution, a pretrial. Let's say that he's then retried and he's acquitted. That's been a huge waste of two years in a federal correctional facility. It's been a waste of resources in the provincial facility, and he may have had a new trial because his first trial didn't go properly because of the inexperience of his trial counsel who is a poorly trained, poorly paid young lawyer—no disrespect to that lawyer.
If we invest at the front end and ensure that the first trial goes appropriately, all of those wasted expenses won't accrue. That's why, again, we see a 7:1 or 5:1 payoff for every dollar invested in ensuring that the system runs correctly at the front end.
Mr. Ferguson, I want to follow up on the line of questioning from Mr. McKinnon.
It's quite obvious in your report, on page 2, that you directly tie the current difficulties in access to public legal assistance to the federal government's decision to transfer funds to the Canada social transfer back in the 1990s.
Mr. McKinnon quoted from page 5 of your report. Just above where he quoted, it says that in the year 2000 you urged “the enactment of federal legislation to establish access to legal representation as an essential service”.
This committee is going to be issuing a report. We're going to have some recommendations, and of course we want those recommendations backed up by witness testimony. For our recommendation to the from this specific report, can you give us some ideas of what key components you want to see in that legislative framework so that hopefully we do see a government bill come as a result?
One thing we need to recognize is that when a person has legal problems, there is a ripple effect. It affects their income, it affects their employment, it affects their health, and it affects their housing. What we have to recognize is that any framework has to take that into account. There are going to be other issues we need to deal with.
I don't think there has been a study done in Canada yet, but I'd like to see a study done by some academics, perhaps from my own institution, on that issue. There is no question that it happens, so there has to be a multidisciplinary approach to this. Also, that could involve, whether it's diversion into other.... I'm talking about a triage system, and so on.
The other issue that I've come to see from working on this report is what I call the silo effect. We have 13 provinces and territories, each with an attorney general. We have, I'm guessing, 50 different courts among all the provinces and the federal system. We have the different legal aid plans and so on. It is so difficult to get all the pieces to work together and get everybody talking. We have to find a way to coordinate and have these common goals; otherwise, this will be totally in vain. We'll just be talking into the wind here. There has to be a national effort at every single level.
The key there is the funding, of course.
Mr. Alistair MacGregor: Yes.
Mr. Doug Ferguson: I think that taking it out of the social transfer, the CST, would be a good start. Also, the benchmarks would be helpful, too, because you're quite right; it's not just women in family law. My clinic, for example, handles a lot of landlord and tenant issues and many people with mental health issues. I had one case in which a gentleman who came to us had brain damage from an accident and was tossed out by the local housing authority. He was going to be homeless unless he found somebody to live with.
You don't hear about those stories in the newspapers, but this is real. It's out there. That's why I'm talking about having a multidisciplinary approach, having specific targeted funding by legal aid outside the social transfer, and hopefully coming to an agreement with the provinces on what that money is for. There has to be an agreement. I don't see the federal government being able to impose that, nor do I see them giving the money without strings.
Thank you, ladies and gentlemen, for coming in and providing your very valuable testimony.
I have a constituent who is working at a minimum wage job, is the mother of three children, and is going through divorce proceedings. It's tough for her. She can't afford it, and she has come to me looking for help. This study is very important not just to me and not just to this specific lady, but I think to all Canadians.
Over the past year, we've really looked at how we can improve access to justice. We've looked at the court challenges program. We've allotted funding for that. We know that at the federal level we're providing transfers to the provinces. The province itself is doing the work to make sure there's access to justice, but still, access to justice is elusive for a lot of Canadians. What's lacking? The different levels of government are trying, but why are we not succeeding? Why is there this gap? If you can, please explain this.
What we're trying to do with the benchmarks is broaden the discussion from “the system needs more money”, which it obviously does, and the need for belt tightening. We're trying to open up that discussion.
For example, there needs to be a coordination between the justice systems and other areas—health, social services, that kind of thing. That's what I think our last benchmark really speaks to, the need for a coordination of the system and also a coordination within jurisdictions. We recognize very well that there are going to be differing priorities in different jurisdictions, and we're saying that our benchmarks allow for a flexibility in that, so that local priorities can be reflected in those benchmarks. We need to have a common language to have a discussion and to know what, concretely, the goal is that we're trying to meet.
What we're trying to say with the benchmarks is that we need all of the stakeholders, provincial government and federal government, to meet and collaborate and agree upon common aspirational goals to do all of these things. Yes, it's money but it's also the need to look not just at legal representation but at triage, to look at different paths to justice and make those a reality for people.
In the example you gave of your constituent, it's also a matter that in criminal legal aid there has been seen to be and there are foundational constitutional principles at play, but there needs to be a deeper recognition, particularly for groups such as women, that there are also constitutional rights at play: section 7 rights, the section 15 right to equality, and section 28, which says that women's rights have to be taken equally seriously as those of men. The right to liberty for an abused woman, for example, has to be taken equally seriously.
You hit my sweet spot there, Mr. Cooper, especially when you mentioned law students, because that's what I do.
I think there is definitely more scope for the involvement of law students in the civil system, particularly in family law, which is where the need is the greatest. My students, for example, handle trials in the criminal courts for summary conviction matters. I would like to see them do super-summary matters, which would be like drinking and driving trials. That is not allowed right now by the Criminal Code. If that were changed it would allow us to do so.
As far as paralegals go, I think they can take also a more significant role to help keep costs down in a limited way. In Ontario, as you know, paralegals are governed by the law society. They handle small claims court, landlord and tenant, and some other tribunals. I think there is some leeway for expanding their role.
I'm somewhere between the two positions.
I see a difference between students, law students, articling students, and paralegals, because law students and articling students always work under the supervision of a lawyer. The lawyer is ultimately accountable for their work. I don't know about criminal law, but I think there are situations in other civil law areas where liberty is not at issue and where maybe students can play a bigger role.
I think I would use Mr. Ferguson's definition of what is essential. If you have liberty issues, where significant equality rights issues are at stake, then I think it's important to have proper legal counsel, and I agree with Mr. Fowler, as well. In Ontario, they have now started to fund a second chair for criminal law, so that senior counsels can work with junior counsels in order to train them on complex criminal cases.
Mr. Ferguson, I'm jumping to civil legal aid now. You answered a question, which I also had, from my friend Mr. Bittle a moment ago about the scope of civil legal aid. I'm wondering, though, about efficiencies in the system itself and whether legal aid could be part of those efficiencies. I'm thinking of efficiencies, within family services, most particularly for mediation, for people to have access to mediation to weed out the cases that can be resolved in the very first instance or after a short period of time without causing delay or clogging up the court system.
Obviously, it wouldn't be appropriate for cases of domestic violence and those sorts of cases, but do you see merit to it? Can legal aid play a part in those types of services?
In British Columbia we have that; we have enhanced fees. The hourly rate is $120 an hour rather than the regular hourly rate for somebody with a 10-year call, which is about $91 an hour. If you look at what the cost of running an office is, however....
A good way to do the calculation is to ask, what does it cost the government to fund a senior prosecutor? The government pays their pension, their salary, their health benefits, their other benefits, their office expenses; $120 an hour doesn't even get close to what it costs to support a senior prosecutor.
Yes, that's the way to do it. You have to have a tiered system. This is what was recommended by the Code-LeSage commission, and it is what led to increases to legal aid, because senior counsel weren't doing the murder cases and weren't doing the cases that were scheduled for six months.
I say that the practice of law is about judgment. You're not born with judgment; you learn good judgment. The decision whether to make a motion for the exclusion of evidence under the charter or not is based on good judgment. Younger, less experienced lawyers are probably likely to err on the side of making the motion rather than having the courage not to make the motion, recognizing that it has very little chance of success. The difference in the length of that trial could be a month or two.
That's why investing in senior counsel who will train junior counsel to make those good decisions is all going to pay off in the end.
I'm afraid I'd have to agree with that. I honestly cannot....
Of course, you're always going to say that there was one individual who got legal aid who shouldn't have gotten it, because no system you put in place is going to be without its flaws. There's always going to be somebody who creeps in, who doesn't disclose their income as accurately as they should have done.
What, though, is the cost of policing it better? Probably that money would be better spent by putting it into legal aid rather than trying to prevent the very few people who get it but shouldn't get it.
I'm sorry, I cannot think of a single service that is currently funded that shouldn't be. If you want to ask the question in reverse, I'm happy to answer it.
Voices: Oh, oh!
At the end of the day, this is a philosophical question. It's a very difficult thing. I appreciate that different individuals have different beliefs on this issue. I happen to come at it from a different perspective; I happen to think that safe injection sites actually save lives.
In Vancouver right now we have an absolute crisis with fentanyl. The irony of it is that we have a crisis with fentanyl because we tried to deal with addiction by changing how we dealt with oxycodone addictions. The composition of oxycodone changed to make it impossible to snort. You couldn't grind it up. We have an opiate crisis. This shows the intersection between health and the criminal justice system. We have a health crisis because opiates have been far more overprescribed in Canada than in any other country in the world. We are heavily embedded in the opiate prescription business as a way of dealing with pain.
If you go to Vancouver right now, we've had 700 deaths. We have street people walking the streets, patrolling the streets with the antidote Narcan to save people's lives. There are going to be addicts. History has shown us this. We've had prohibition. There are going to be addicts. It's whether you think the way to deal with an addict is with the criminal justice system. I would say it is not. Is it with the health system, or is it is with a combination of the two? In Vancouver, we try a combination of the two.
Until the fentanyl crisis we were doing better than we've done for years, in my submission. Many more addicts are being seen as a health problem rather than a criminal justice problem. In other words, the court system is no longer the first place they go. It's the place they go later on. We could talk about this for a long time. I don't generally agree with the proposition that funding safe injection sites or legalizing marijuana is going to create more of these problems.
Regulation of alcohol works better than prohibition. I think history has shown that. I think the regulation of marijuana, which is already widely available, is going to deal with the problem better. Having a source of marijuana that is regulated is far better than having it in the hands of organized crime.
I think certainly I would highly question whether the spirit of section 15 is being met and whether the spirit of the rule of law, which is the foundational principle of our Constitution, is also being met. It's not just across Canada. Even within Ontario, where it's one of the best-funded legal aid programs, you see disparities. We talk about the gender issue in terms of the difference between access to family law versus criminal law. You will see a gender difference in that aspect.
Of course, if you look at the fact that racialized group members are two to six times more likely to live in poverty, then you see a racial aspect as well. The impact on racialized groups and their access to legal aid is also affected as well. All of those issues, I think, come under section 15, but also I think, as Ms. Froc had mentioned, section 7 is an issue as well, and that has been used in some of the cases with respect to a constitutional challenge to access to legal aid for child protection cases, for instance.
I would say that the same argument goes with many other areas of law. When you're being evicted from your home, you should get access to legal aid.